Granado #251540 v. Ryan et al

Filing 19

ORDER ACCEPTING REPORT AND RECOMMENDATION 17 as interpreted in this order - IT IS FURTHER ORDERED that Nicholas Anthony Granado's Petition is dismissed with prejudice. IT IS FURTHER ORDERED that a certificate of appealability and leave to proc eed in forma pauperis are denied because dismissal of the Petition is justified by a plain procedural bar and jurists of reason would not find the ruling debatable. (See document for further details). Signed by Judge Douglas L Rayes on 11/10/14. (LAD)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Nicholas Anthony Granado,
Petitioner,

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ORDER

v.

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No. CV-13-01618-PHX-DLR

Charles L. Ryan, et al.,

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Respondents.

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Petitioner Nicholas Anthony Granado pled guilty to one count of kidnapping and

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three counts of attempted sexual assault in Maricopa County Superior Court in 2010. He

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was sentenced to 10 years on the kidnapping charge, and was given suspended sentences

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with lifetime probation on the attempted sexual assault charges, which included a

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requirement that he register as a sex offender.

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Mr. Granado filed a petition for writ of habeas corpus challenging his conviction

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on three grounds: (1) that his due process rights were violated because he was not an

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adult at the time of the crime but the state court required registration as a sex offender

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upon his release, (2) that his due process rights were violated because he was tried as an

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adult even though he was a juvenile at the time of the crime, and (3) that he received

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ineffective assistance of counsel in connection with this state post-conviction petition

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because the court allowed his counsel to withdraw and did not appoint a replacement.

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(See Doc. 1 at 6–8.) The Court referred the petition to United States Magistrate Judge

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James F. Metcalf for report and recommendation (“R&R”). (See Docs. 2, 17.) Judge

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Metcalf recommended that the Petition be denied and dismissed with prejudice because

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Petitioner failed to exhaust his state remedies, his claims are procedurally defaulted, and

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he failed to establish cause and prejudice to excuse his procedural defaults. (Doc. 17 at

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12.)

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Respondents filed objections to the R&R, alleging error in its conclusion that the

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Petition stated claims cognizable in a federal habeas proceeding. (Doc. 18.) However,

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Respondents requested that the Court adopt the R&R with respect to its exhaustion and

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procedural default analyses and its ultimate conclusions. Mr. Granado did not file an

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objection to the R&R.
I.

Standard of Review

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A party may file specific written objections to the R&R’s proposed findings and

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recommendations. The Court must undertake de novo review of those portions of the

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R&R to which specific objections are made. The Court may accept, reject, or modify, in

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whole or in part, the findings or recommendations made by the Magistrate Judge.

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Fed. R. Civ. P. 72(b); 28 U.S.C. § 636(b)(1).

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II.

Analysis

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Respondents argue that the Court should reject the R&R’s cognizability analysis

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because it “misstates the law” and “too liberally construes Petitioner’s claims.” (Doc. 18

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at 3.)

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demonstrated errors rising to the level of constitutional violations. Instead, the R&R

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pointed out that Mr. Granado’s petition purported to assert violations of his constitutional

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rights, as required by 28 U.S.C. § 2254(a). However, as the R&R thoroughly explained,

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even if Mr. Granado stated cognizable claims, they are procedurally defaulted and barred

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from federal review. The R&R did not reach or rule on the merits on Mr. Granado’s

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claims, and neither does this Court.

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Magistrate Metcalf did not consider whether or conclude that Mr. Granado

IT IS ORDERED that Judge Metcalf’s R&R (Doc. 17) is accepted, as interpreted
in this Order.

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IT IS FURTHER ORDERED that Nicholas Anthony Granado’s Petition is
dismissed with prejudice.

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IT IS FURTHER ORDERED that a certificate of appealability and leave to

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proceed in forma pauperis are denied because dismissal of the Petition is justified by a

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plain procedural bar and jurists of reason would not find the ruling debatable.

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Dated this 10th day of November, 2014.

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Douglas L. Rayes
United States District Judge

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